·the Code of Good Practice in Electoral
Matters, Guidelines and Explanatory Report, adopted by the Venice Commission on 18-19 October
2002, CDL-AD(2002)023rev

5. The
following opinion, by Mr Ángel Sánchez Navarro, is on the draft Law “On
elections of People’s Deputies of Ukraine”, as introduced by the
deputies S. Havrysh, Y. Ioffe and H. Dashutin.

Preliminary
remarks

On the scope of this report

6. The Venice Commission was invited to
comment on two draft laws on electoral reform in Ukraine. This opinion specifically deals with the draft Law On
Elections of People’s Deputies of Ukraine, introduced by Ukrainian Deputies
Mrs. S. Havrysh, Y. Ioffe and H. Dashutin (the draft).

7. Nonetheless, the report may not ignore
other texts, in particular the Law on Elections adopted by the Verkhovna
Rada of Ukraine on 13 September 2001 (the existing Law)[2], which
serve as reference in different ways. In addition, a second draft Law On
Elections of the People’s Deputies of Ukraine, introduced by the people’s Deputies Mrs. Rud’kowsky and Melnychuk
(the R & M draft) also submitted for the Venice Commission’s expert
opinion.

8. This second draft is the object of another
opinion, by Mr. Kåre Vollan. Logically, as they both intend to modify the same
existing Law, they share some points and differ in others. Therefore, it must
be taken it into account.

On complications due to different terminology

9. It must be stated
that this opinion faces difficulties arising from differences observed in
translations of the different background texts. In fact, and leaving aside
aspects which intend to reform, the draft follows more or less closely the
general structure of the existing Law. But as the terms are absolutely
different, it is impossible to ascertain which are the exact points to be
reformed, and if the differences arise from the will to reform or just from the
translation.

10. The point may be essential. For
instance, the existing Law entitles Chapter II as Types of Elections,
Procedure for and Terms of Calling, whereas the draft talks about Kinds
of Elections of People’s Deputies of Ukraine, Procedure and Time of Setting Them.
What is more, the Second (R & M draft) says Types
of Elections of Deputies, Procedure and Terms of Election Scheduling. One might assume that the differences are due to the wording –
different translation. However, it would be possible to consider other reasons[3].

11. Due to the fact that sometimes
differences exist, for instance, while the existing Law says that “mass media
representatives shall be provided with unlimited access to all public
events connected with elections” (Article 12.4, very similar to the formula
used by Article 13.4 in the R & M draft), the draft speaks about members
of mass media, who “shall be guaranteed free access to all events related
to elections” (Article 10.4). So although the rule is clear, divergences may
be considerable, and it is hard to distinguish if they are intentional or not.

12. Something similar could be said with
regard to Article 24.5, although in this case the problem would arise in the
case of the R & M draft, which obliges members of election committees to adhere
to the Ukrainian Constitution and Laws (Article 28.6.1); whilst the commented
draft (Article 24.51), as the existing Law (Article 26.6.1), use the term observe,
which is – may be – different. Or the expression charity [or charitable]
contributions to the election fund of parties or electoral blocs (see, e.g.,
Articles. 34.1, 4 and 6 of the draft, and Article 40 of the R & M draft),
instead of the term – much more precise – (voluntary) donations, used by
the Article 36 of the existing Law.

General structure
of the draft

13. As has already been mentioned, the draft
follows the general structure of the existing Law, not only in the organisation
of chapters, but also in their content. In brief, many – if not most – of the
points highlighted by the previous opinion of the Venice Commission[4] could be repeated.

14. The main differences arise from variation
of the electoral system. Looking closely at the chapters, it is evident that
they are very similar: in title (despite the underlined differences probably
due to translation), in order, and even in the number of articles of most of
the chapters. In fact, Chapters I to VI (Articles 1-37 of the existing Law and
1-35 of the draft), Chapters VIII and IX (Articles 53-64 in the Law and 40-48
of the draft), and the Final and Closing Provisions are quite similar,
if not almost identical. However, there are slight variations.

15. In Chapter II (Kinds of elections…,
procedure and time of setting them), as in 2001, the terms seem sufficient
– if not too long – to allow parties to prepare the election. In any case, it
must be noted that the draft affirms that elections shall be held on the
last Sunday of September […], something which – if not due to a mistake –
is contrary to Article 77 of the Ukrainian Constitution, which fixes it at the
last Sunday of March (as, consequently, do the existing Law and the R & M
draft).

Electoral
system

16. The draft intends to introduce deep
reform in the Ukrainian electoral system presently in force. In short, it
removes the majoritarian element in the election of the Ukrainian Parliament Verkhovna
Rada of Ukraine (the Rada).

17. Under the existing Law, this Chamber is
composed of 450 deputies, elected on the basis of a mixed
(majoritarian-proportional) system. One half, that is 225 of them, are elected
on a unique, national and multi-mandate constituency, following Proportional
Representation rules (national lists, threshold of 4% of the cast votes, larger
fractional remainders for distribution of seats undistributed after the
application of the electoral quota). The other 225 deputies are elected on a
majoritarian rule, in 225 single-mandate constituencies (Articles 1.3 and 16).

18. The draft (as does the other R & M
draft) suppresses the majoritarian component, so as to organise a purely
Proportional Representation system (with the same larger fractional remainders
method) for the election of the 450 deputies. In this way, a national
multi-mandate constituency, which shall include the entire territory of
Ukraine, shall be formed, even if the territory of the national
constituency shall be divided into 450 territorial constituencies with an
approximately equal number of voters (Articles 1.3 and 14; the R & M
draft follows the same principle, but maintains the number of 225 territorial
constituencies). Moreover, the electoral threshold is raised to 5% (Article
55; the R & M draft maintains the 4% presently in force).

19. From a political perspective, 33 party
lists were present in the multi-mandate (national) constituency in the last
Ukrainian general elections (held 31 March 2002) despite the difficulties in
presenting lists[5].
Only 6 of them got more than the 4%, allowing them to participate in the
national distribution of seats. With respect to those lists under the 4%
threshold: one had more than 3% (836,000 votes), two exceeded 2% (between
525,000 and 550,000 votes), and 4 more with more than 1% (from 282,000 to
362,000 votes). Twenty other lists remained under the 1% of the votes, even
though two had more than 200,000 voters, three more than 100,000, with 15
getting less than 100,000 ballots). Therefore, the proportionally elected part
of the Chamber reduced political fragmentation, although at a relatively high
cost in terms of “useless” votes (nearly 4,700,000 votes cast for those parties
under the 4% threshold, i.e. almost 20% of the votes did not serve to elect a
member of parliament).

20. In the same elections, the single-mandate
constituencies gave a seat to 95 independent candidates; 7 seats to candidates
of Parties under the 4% threshold, and 123 others to candidates belonging to
the 6 parties with more than 4%. In other words, these single-mandate
constituencies clearly increased the degree of parliamentary fragmentation,
making it more difficult to form a majority. Moreover, candidates linked to
parties forming part of the majority in office clearly benefited.

21. Against this background, an entirely
Proportional Representation system favours the formation of solid political
parties or electoral blocs, depriving incentives to isolated and purely local
or individual candidatures. Proportional systems do frequently produce highly
fragmented parliaments, but in this case the high threshold makes it more
difficult. In fact, and looking at the 2002 results, the difference between
the 4% threshold in force, and the 5% proposed by the draft, would have been
none: the sixth party got 6.27%, and the seventh, 3.22%.

22. From a purely technical point of view,
the suppression of majoritarian, single-mandate constituencies could produce a
clearer system. Every voter has just one ballot (and not one for the national,
and a second for the single-mandate constituencies). The total distribution of
seats among parties follows proportional criteria, so that a majority of votes
result in a majority of seats. The whole legal framework becomes simpler. The
draft is in fact much shorter than the existing Law.

23. In the Ukrainian political and
institutional context, these changes could have positive results by making parliamentary
majorities and governments more solid.

24. On the other hand, the majoritarian
component could be important in terms of approaching the voters and their
elected representatives. The draft also seems to consider this aspect, when
organising the distribution of Deputy mandates. In effect, once the total
number of 450 seats has been proportionally distributed among the parties
exceeding the 5% electoral threshold, the list of elected Deputies shall be
made based on the results of elections in (every one of the 450 territorial)
constituencies. More precisely, the list of elected candidates of a party
will be made out considering the largest percentage of the votes cast
for that party in the different territorial constituencies, so that candidates shall
be placed on the list in the order of diminishing percentage of votes cast for
the party (election bloc) in constituencies (Article 56.5).

25. This system is complex, and therefore may
find practical difficulties; for example, given that the constituencies are
formed with an approximately equal number of voters, there may be
candidates not elected with more ballots than others with fewer ballots, but
higher percentage. Nevertheless, this could maintain a closer link between
voters and Deputies, which may be important for the legitimacy of the whole
system. In quantitative terms, 450 constituencies, and consequently Deputies,
for a country with over 37,000,000 registered electors means each constituency would
have about 80-85,000 voters.

The right to
vote

26. In Chapter I (General Provisions),
the Law includes some precisions about the exercise of the right to vote of
Ukrainian citizens who are out of Ukraine (Article 2.6, which nevertheless does not seem to solve the
problem), or who cannot vote personally for health reasons (Article 4).

27. In any case, there are still two arguable
points, referred to the right to be elected, which were already noted in the
previous Venice Commission opinion, and which remain unchanged. The first, the
requirement of five years residence in Ukraine, is clearly excessive, and does not respect the standards outlined
in the Code of good practice in electoral matters[6]. According
to the Code of good practice, a length of residence requirement may be imposed
on nationals solely for local or regional elections, and it should not exceed
six months, unless its aim is to protect national minorities.

28. The second, the extent of the limitation
imposed on those citizens convicted by a court. In this respect, the
draft not clarify – as suggested by the 2001 Venice commission opinion[7] – that this limit
should only be applied to citizens against whom there is a final conviction
but, on the contrary, seems to indicate that this limit has been extended,
since it includes citizens not only convicted, but also who [are] at
institution of confinement, whatever it may be.

Nomination
and registration of candidates

29. The existing Law contains 15 Articles
(38-52) in Chapter VII, while the draft only has four (36-39). The main –
although not the only – reason is clear: the existing Law dedicates some
articles to matters which are no longer meaningful, such as conditions
and procedure of registration of Candidates… in a single-mandate
constituency (Articles 42, 49), and the rules about the collection of
signatures of voters required for presenting candidatures (Articles
43-46). In addition, it is evident that the remaining rules are simpler since
they just refer to party candidatures, and do not have to take into
consideration individual – non-party – candidatures.

Constituencies
and election districts

30. It can be underlined in Chapter III – as
already stated in the 2001 Venice Commission opinion[8] – the difficulties arising from the need to form the 450
territorial constituencies before each election, instead of just re-shaping
them (which, in principle, seems to be much easier). With respect to the
existing Law, it must be mentioned that the existing Law foresees a maximum
deviation of 10% from the estimated average number of voters in a constituency,
a limit which disappears in the draft.

31. The draft also keeps an excessive
variation in the number of voters in any electoral district (or polling
station), from 20 to 3,000 (Article 15.6). 3,000 voters are too many, if
ballots have to be counted efficiently. One can also repeat what the 2001 Venice
Commission opinion said about the exceptional possibility of late formation of
an electoral district (Article 15.7); this should be avoided, but in any case
the law should set up some objective criteria to allow it.

Election
committees

32. In Chapter IV, the structure of the
existing Law is basically unchanged. In general, aiming for maximum
impartiality, both texts set committees with a relatively high number of
members (at least 10 members for territorial committees; at least 8 for
district committees, according to Articles 18.3 and 19.3; the existing Law
established in both cases a number of 8). This option allows the presence of
members or representatives of the main parties in the committees, as a
guarantee of impartiality of the working of the system. But, on the other
hand, it implies committees made up by party members (with the consequent
danger of reproducing political conflicts), and by, possibly, many people.
Given these committees’ important role throughout the electoral process, it
might be more convenient to constitute smaller organs which are more
technically prepared and politically independent.

33. Some other minor aspects can be
mentioned: for instance, the draft implements the 2001 Venice Commission
proposal that committees must be convened at the request of one third of
their members (Article 23.1), thus giving additional protection to minorities.
In addition, as the same document opportunely pointed out, the system of
appeals (Article 27), which is of course a guarantee in itself, is sometimes
quite confusing, for example when it allows an appeal to a superior election
committee or to a court (Article 27.3 and 4). Confusion should be carefully
avoided on these points. Finally, the need to include paragraphs establishing
that a court shall dismiss an appeal if it establishes that the decisions
[…] were lawful (Article 27.18), or that the decisions of a court shall
be carried out promptly (Article 27.19).

Register of
votes, financial and material support

34. Chapters V and VI closely follow the
existing Law structure, which was in general quite adequate. The draft seems
to be concerned about private election funds of the parties or blocs,
and so sets up new limits for donations (or charity contributions). The
amount of these contributions is limited, from a maximum of 1,000 minimum wages
in Article 37.4 of the existing Law, to 120 minimum wages in the draft, Article
34.5. The ban on contributions is extended to new groups, such as public
bodies, state-owned businesses, or foreign entities (Article 34.4). Moreover,
at the beginning of this Chapter VI, Article 30 introduces a new ban: the
election funds of a party or bloc cannot finance other parties or election
blocs.

35. Even if it is very difficult to judge
this kind of rule in the abstract, without having knowledge of the general
context in which they will be applied, they seem to give a clear framework
allowing greater control in this financial sphere, while simultaneous making
individual contributions to parties and blocs possible.

Nomination
and registration of candidates

36. Chapter VII of the draft presents, as
already highlighted, an initial advantage when compared with the existing Law:
that of being much shorter, due to the elimination of self-nominated candidates
and the requisite of a number of signatures.

37. Therefore, the right to nominate
candidates belongs only to political parties (Article 8), no longer submitted
to the requisite of being registered at least one year prior to the election
date (Article 38.1 of the existing Law). This time requirement, reduced in
length, only remains with reference to electoral coalitions: election blocs
of parties can be established […] by political parties registered […] at least
six months prior […] to the beginning of the process of nomination of
candidates (Article 36).

38. The draft revives the concept of
electoral deposit (performance bond, Article 37) absent in the existing
Law. In this sense, it complies with the Code of good practice in electoral
matters, which says that the deposit appears to be more effective that
collecting signatures. However, it adds that the amount of deposit and
the number of votes needed for it to be reimbursed should not be excessive.
In addition, the provisions of the draft seem to be too burdensome: the amount
seems too high (20,000 minimum statutory salaries) with reimbursement
only granted if the party (or bloc) wins at least 2.5 per cent of votes cast.
Otherwise, it shall be transferred to the State Budget of Ukraine. Looking at the 2002 results,
this electoral barrier represents almost 700,000 votes. Democratic systems
need strong parties, but this objective cannot be reached by imposing such
charges on minor political actors, because it may impede the appearance of new
parties.

39. The nomination procedure of candidates by
the parties follows the pattern of the existing Law. The 2001 Venice commission opinion[9]
underlined that this text introduced specific rules on how a party […]
nominates candidate, something which was considered as a positive step,
even if more detailed provisions on the democratic character of the internal
procedure of the party could be suitable.

40. In the light of this new opinion, it is
more appropriate to temper this previous comment. Indeed, even if it is
necessary to introduce some rules about the nomination of candidates, the
provisions appear too detailed. The electoral Law may impose some
requirements, but should not go as far as to impose that the candidatures must
be supplemented by extracts of minutes of the corresponding party cell’s
meeting, including information on total number of party members […]
pertinent to the respective regional unit, the number of participants at the
meeting […] (Article 36). In our opinion, the Law may require that
candidates have to be presented by parties, according to some general criteria
(democratic principles), which could be precise in a law on Parties. But it
should not descend into such detail, especially when, in a legal framework such
as the Ukrainian, parties have to be very solid if they can survive, and the
same democratic requirement should be applicable to other kinds of elections
(presidential, local elections…).

41. The draft also maintains the requirement
of a property and income statement of candidates and his family
members (Article 38). In case of deliberately misleading information,
or serious non-compliance with the law […] with an intention to deceive voters,
the result will be denial of registration of the candidate, something which
seems to respect the principle of proportionality. Moreover, this decision may
be appealed in court, and the withdrawn candidate may be replaced by the party
(Article 39.3), whereas the existing Law seemed to impose the loss of the
status of subject of the election process for the whole party (Article
50.3), something which the 2001 Venice Commission opinion correctly considered clearly
disproportionate.

Election
campaigning

42. Chapter VIII does not seem to pose any
serious problems. Again, the excessive complexity and length of some articles
may be underlined. For instance, the principle stated in Article 40.7 (election
campaign may be conducted in any form and using any means that shall not
contradict the constitutional and legal Ukrainian framework) would possibly
render useless the Article 40.2[10]. On the other hand, there is a ban on the ability to campaign and
distribute any campaign materials (which appears, at the very least,
excessive), including persons who are not citizens of Ukraine, civil servants, or charitable organisations and religious
associations (in fact, this is clearly a mistake, because the latter are
included twice in Article 40.5).

43. The campaign is defined as lasting from
the day the list is registered to 00:00 hours before Election Day (Article 40.1). This definition is quite
practical, because in fact when the electoral process is open for a party or
bloc, all its activities are, in a way or another, aimed at electoral purposes.

44. The excessive intervention of public
powers is again evident when the draft requires that parties present one
copy of each kind of printed campaigning materials […] to the territorial
constituency election commission within three days from producing them
(Article 41.7).

45. For the remainder, the draft retains the
basic criteria for use of (public) mass media in campaigning, based on the
principle of equal opportunities. In the case of non-state-owned media, the
election campaign shall be limited only by the size of the election fund.
Other restrictions, in Article 43 whose wording is too long and complex,
include the ban on announcing results of sociological surveys and opinion polls
15 days before the elections (an overly long limit and possibly very difficult
to impose in the Internet world); and the – very correctly defined – ban on
candidates holding public office to use public resources (human or material:
official transport, means of communication, equipment, premises…) for their
election campaigns, even if it may be difficult to ascertain, at least in some
cases.

Guarantees of
the activity of parties and official observers

46. Chapter IX sets up quite a good system of
guarantees, including representatives of parties and blocs in the election
commissions (again too long and reiterative articles: see, e.g., Article 44.3
and 44.6, 44.4 and 44.7). Concerning guarantees for candidates, and official
observers, i.e. partisans and from international organisations, there is no
place for national, non-partisan observers; but in the general context of
guarantees, it does not seem to be excessively important.

Voting and
determining of results

47. The existing Law contains a unique and
exhaustive Chapter X on this topic (Articles 65-84), an issue ruled in the
draft by Chapters X (Voting, Articles 49-51) an XI (Vote, counting,
distribution of Deputy mandates […] and ascertaining election results,
Articles 52-58). The much simpler organisation is due to the system proposed
in the draft (only one ballot, only one voting-box, only one result in every
constituency, end of midterm elections, etc.) justifies also the great
differences, not only in the number of Articles (20 in the existing Law; 10 in
the draft), but also in their length: 20 pages in the Law, 8 in the draft.

48. Equally, but with less weight, the
Chapter XI of the existing Law rules different kinds of elections (repeat,
midterm and extraordinary, Articles 85-87), of which only the latter makes
sense in the scheme introduced by the draft (see Chapter XII, Extraordinary
elections, Article 59).

49. In short, all these variations imply a
shorter and – to a certain extent – clearer text, something which should be
considered as a positive improvement.

50. Chapter X is now, as has already been
pointed out, a short and clear chapter, which does not pose serious problems.
Voting time is extended (from 7 a.m. to 10 p.m.; in the
existing Law, it is from 8 a.m.
to 8 p.m.; in the other draft,
from 8 a.m. to 9 p.m.), possibly unnecessary. The voting
control is based on check slips, not necessarily the best method, but not
definitively valued as negative. The procedure for exceptionally voting
outside the voting premises is limited, since written application must be
presented 3 days prior to Election Day (and not 12 hours before the start of
voting, as in the existing Law). This restriction may be justified if the system
caused problems, but if not case should be avoided, since the procedure lends
itself to exercise, with certain guarantees, the right to vote in exceptional
cases.

Counting and
mandates

51. We have already made some comments on
Chapter XI. It does not pose procedural problems, and contains a good system
of guarantees, even if – once more – the wording of the articles could be
shorter and simpler. In any case, there seems to be a wording error in Article
56.2, when defining the election quota, which is calculated by
dividing the total number of votes cast for the political parties (election
blocs) by the total number of deputy mandates (450). In fact, the votes to
be taken into consideration are those cast for the political parties (blocs)
that received five percent or more votes, i.e. which reached the electoral
threshold (see Article 79.5 in the existing Law).

Extraordinary
elections

52. Chapter XII is now reduced to one
article, which governs what could be also be defined as anticipated
elections (Article 77.2 of the Constitution), convened by the President of
the Republic. In the event of anticipated elections, all regular terms
foreseen in the rest of the draft are shortened, following almost exactly the
provisions of the existing Law.

Final
provisions

53. Finally, the Final provisions define a
list of behaviour or conduct which bear criminal, administrative or other
responsibility (Article 60), albeit an open list, because the Law of
Ukraine may establish responsibility for other violations of the legislation of
Ukraine on election of deputies. From a technical perspective, and looking
at concrete examples, it would be better to specify the consequences of all
those types of behaviour, differentiating between serious and other violations,
or, at the very least, the respective consequences.

Conclusions

54. In addition to the differences
highlighted in the present opinion, there are other issues in the different
chapters (or sections) of the draft which could be mentioned. Many of them
reproduce aspects already pointed out in the previously quoted Venice
Commission opinion[11].

55. It has been correctly stated that in
electoral matters, the strongest law is the law of inertia. This draft breaks
that rule, trying to establish a simpler electoral system, which could
reinforce the party system and at the same time the efficiency of government
policies. These aspects are essential for a country in transition, and so they
deserve a good evaluation.

56. Moreover, the proposed system is easier
to understand, and to implement, something which may provoke a stronger
legitimacy of the whole political regime, beause it may be based on democratic
elections.

57. Nevertheless, there are some troublesome
points, which may be source of conflicts, such as those relative to the
electoral deposit. In general, and from a formal point of view, less complex
wording of the draft (as of the existing Law) would be more desirable: some
questions are too detailed (e.g.: the processes for party nominations of
candidates); rules are often repeated (see supra, Article 16); the
structure of some articles[12], could also possibly be shortened and made clearer.

58. In addition, some repetitive, long,
confusing, and unnecessary expressions can be found throughout the draft and
could be avoided, at least some of the time[13]. It would suffice to speak about parties’ representatives or
candidates, including as a general principle that all references to parties
must also be applied to blocs, unless otherwise stated.

[3]When the existing Law speaks about polling stations (Article 17),
both drafts use the term election district, which may be exactly the same or
not; therefore it is difficult to guess if there is a difference or not. In
fact, and given that the deputies are elected on a nationwide basis, one can
consider that the term polling station is more precise and less confusing.
However, one cannot be sure if the Law and the draft use the same or different
expressions, in their original Ukrainian texts. The same can be said for the
election commission system (Article 18 of the existing Law); election
commissions network (Article 20 in the R&M draft), or system of election
committees (Article 16 of the draft).

[4]CDL-INF(2001)022, Opinion on the Ukrainian Law on Elections of People’s
Deputies, adopted by the Verkhovna Rada on 13 September 2001, adopted by the
Venice Commission at its 48th Plenary Session (Venice, 19-20 October 2001).

[5]The requirement of 500,000 signatures, from 18 different regions,
was correctly qualified of too high by the Opinion on the Ukrainian Law on
elections of People’s Deputies adopted by the Verkhovna Rada on 13 September
2001, CDL-INF(2001)022.

[6]CDL-AD(2002)023rev, adopted by the Venice Commission at its 51st Plenary Session (July 2002).

[10]Article
40.2 : Citizens of Ukraine, political parties (election
blocs), other associations of citizens, collectives of enterprises,
institutions and organizations shall have the right to freely and thoroughly
discuss election programmes of political parties, political, business and
personal qualities of authorised representatives – candidates for people’s
deputies from political parties (election blocs) and campaign for or against
them at meetings, mass-meetings, in conversations, in the press, on the radio
and television.

[13]For example, the reference to authorised representatives-candidates
for people’s deputies from political parties (election blocs) is repeated, in
Article 43 (made up of 12 paragraphs), no less than ten times, four of them in
the same paragraph (Article 43.4).